Domestic Violence
Domestic Violence
When one spouse or partner has been the victim of domestic violence they may bring a request for a domestic violence restraining order in order to protect them (and/or children or family members) from the perpetrator of domestic violence.
This begins with the filing of a Request for Domestic Violence Restraining Order (Form DV-100) and related forms. The requesting party must then give “ex parte” notice within 24 hours of their filing of the request. This can be done by phone, email, or text. If it is unsafe to give notice, the Court may waive the notice requirement. As part of the domestic violence papers, the requesting party is required to file a “Declaration RE: Notice of Ex Parte Hearing” which states the date, time, and manner notice was given. If no notice was provided, the requesting party must indicate why no notice was given. The Court will then rule on the papers “in chambers” and grant, deny, or grant in part the requested Orders. The Court will not hear any testimony or live evidence, but will only rule on the papers filed in support of the request. In nearly all instances the Court will issue at minimum a temporary “no contact” order pending the final hearing on the request. The Court will then set a date for a hearing on the request within 21 days from the date of issuance of the temporary restraining order.
Standard of Proof for Domestic Violence
California law does not specify a different standard of proof to be applied when issuing orders after a noticed hearing as compared to temporary orders issued without notice to the respondent. The court may issue a restraining order after a noticed hearing if the affidavit provided to the court shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse. Fam Code §§6300, 6340.
Under Fam. Code §6300 (a) an order may be issued under this part to restrain any person for the purpose specified in Section 6220, if an affidavit or testimony and any additional information provided to the court pursuant to Section 6306, shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse. The court may issue an order under this part based solely on the affidavit or testimony of the person requesting the restraining order.
Definition of Abuse
Under Fam. Code §6320 (a) the court may issue an ex parte order enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, credibly impersonating as described in Section 528.5 of the Penal Code, falsely personating as described in Section 529 of the Penal Code, harassing, telephoning, including, but not limited to, making annoying telephone calls as described in Section 653m of the Penal Code, destroying personal
property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party, and, in the discretion of the court, on a showing of good cause, of other named family or household members.
Abuse is bodily injury or threat of injury, stalking, or sexual assault, or behavior that can be enjoined under Fam. Code §6320. Fam Code §6203. Fam. Code §6320 lists several types of nonviolent conduct that may constitute abuse within the meaning of the DVPA; therefore abuse does not have to be actual infliction of physical injury or assault. The plain meaning of the phrase “disturbing the peace of the other party” in Fam. Code §6320 may be properly understood as conduct that destroys the mental or emotional calm of the other party.
“Disturbing the peace of the other party” as a basis for the issuance of a DVPA order is “conduct that destroys the mental or emotional calm of the other party,” not the definition for a criminal offense found in Penal Code Section 415. See Burquet v Brumbaugh (2014) 223 CA4th 1140, 167 CR3d 664.
During the hearing, you may present live testimony, witnesses, photographs, text messages, emails, or any other evidence to substantiate your claim for domestic violence. This is a formal hearing where the rules of evidence and civil procedure apply. At the conclusion of evidence, the Court will then grant, deny, or grant in part the request.
Permanent Restraining Order Repercussions
If the request is granted the perpetrator will be subject to a permanent restraining order for up to five years. Further there are custodial implications when minors are involved.
Under Fam. Code §3044 (a) upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence within the previous five years against the other party seeking custody of the child, or against the child or the child’s siblings, or against a person in subparagraph (A) of paragraph (2) of subdivision (a) of Section 3011 with whom the party has a relationship, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child, pursuant to Sections 3011 and 3020. This presumption may only be rebutted by a preponderance of the evidence.
You may be fired from or prohibited from working in certain professions upon a finding of domestic violence. Upon a finding of domestic violence, your restraining order is registered in the statewide and national criminal database system known as the California Law Enforcement and Telecommunication System (CLETS). The information contained in CLETS informs law enforcement personnel about restraining orders and protective orders that are registered in the database. In seeking or opposing a request for a domestic violence restraining order it is imperative to be represented by experienced counsel familiar with the family code, rules of evidence, and rules of civil procedure as there are significant, life-altering, repercussions upon a finding of domestic violence.